Ex Parte Kearby

• Citation: 34 S.W. 962
• Parties: Ex parte KEARBY.
• Decision Date: 28 March 1896
• Court: Texas Court of Criminal Appeals

34 S.W. 962

Ex parte KEARBY.

Court of Criminal Appeals of Texas.

March 28, 1896.

Application by J. C. Kearby for release from imprisonment on a writ of habeas corpus. Granted.

J. C. Muse and Stillwell H. Russell, for relator. Mann Trice, for the State.

HENDERSON, J.

The relator in this case applied for a writ of habeas corpus to this court, which was granted. Evidence was adduced on the trial of the case, from which it appears that on the morning of the 29th of February, 1896 (which was Saturday), in the criminal district court of Dallas county, J. C. Kearby, the relator, and W. E. Hawkins, were imprisoned in the county jail of said county on the verbal order of the district judge. In the afternoon of the same day the said parties applied to Judge Henderson of the court of criminal appeals, for a writ of habeas corpus, which was granted, said writ being made returnable before the full court on Monday, the 2d day of March. Said parties, by the order of the judge granting the writ, were released in the interim on bonds, which they gave. On their release (which was between 2 and 3 o'clock in the afternoon) they came into the said criminal district court, to re-engage in the trial of a criminal cause then pending and being tried before said court, said Hawkins representing the state and J. C. Kearby representing the defendant. On their return into court it appears that the district judge stated to them that they could not proceed with the trial of the case (which was then before the court) until they had purged themselves of contempt. Hawkins arose, and asked the court what he should do to purge himself of contempt. The court replied, "You are a lawyer, and ought to know." Kearby, the relator, then arose from his place at the table, and said, "Your Honor, I have not committed any contempt, and I decline to purge for what I am not guilty of." The court then ordered the sheriff to take him to jail. This is, in substance, the relation of the matter by the witnesses introduced for the relator, to wit, Kearby, Muse, W. E. Hawkins, S. B. Hawkins, Green Williams, and Henry Williams. Lewis and Cabell, who were introduced by the state, did not materially differ from the testimony of the relator's witnesses as to what occurred preceding the order by the court to put the relator in jail. Webb, Haynes, and Hoskins, three witnesses introduced by the state, indicate by their testimony that something more occurred before the relator was ordered to jail. They state, as well as Cabell, that when Kearby came into the court room he picked up a pitcher in front of him, and set it down to one side, in such a manner as to be heard in the court room. They also testify that during the colloquy that ensued between the judge and the relator, before he was taken from the court room, he became quite boisterous and excited; and they testify that he used a profane epithet, applying it to the judge in such manner as that it could be heard by those immediately around him, and one witness testifies that it was heard by the jury. We gather, however, from the testimony in the case, that the order of the judge to imprison the relator was made, as testified to by nearly all of the witnesses, almost immediately on the parties making their appearance in the court room, so that what afterwards occurred is not so material to a decision of this case; and we are supported in this view by the order of the judge himself, which is as follows: "Saturday, February 29, 1896. It is ordered by the court that J. C. Kearby be, and he is hereby, adjudged to be again in contempt of this court, in that the said Kearby, being already in contempt of this court, as appears from the records thereof, and not having purged himself of said contempt, was informed by the court, after having been released by another tribunal, by writ of habeas corpus, from jail, and on again appearing thereafter in this court, that he nor Mr. Hawkins, who had also been released by said habeas corpus proceedings, could not again appear in the case then on trial until they had purged themselves of said contempt; whereupon said Kearby arose, and said that he had been guilty of no contempt of this court, and that he did not intend to purge himself of what he had not done; and thereupon the court ordered the sheriff to take charge of said Kearby, who insisted upon addressing the court. And the court, in reply to a question addressed by Mr. Hawkins, stated that he was speaking in all kindness of Mr. Kearby, who, again, in a boisterous manner, made the following statement: `I don't want you to treat me kindly. You can talk to me out of court. I want you to treat me as mean as you know how. I want to say that nothing you can do will ever make me look upon you with regard again;' and was continuing to talk in a like manner, when he was ordered more than once to take his seat, which he refused to do, when he was ordered to jail. For all of which it is ordered by the court that said J. C. Kearby be punished for said contempt by imprisonment in the county jail until 9 o'clock tonight, or until he shall have purged himself of said contempt. It is therefore ordered, adjudged, and decreed by the court that the said J. C. Kearby be, and he is hereby, remanded to the custody of the sheriff of Dallas county, Texas, until 9 o'clock to-night, or until he shall have purged himself of said contempt." Said order indicates that the judge required of the relator to purge himself of the contempt committed in the morning, before he would be permitted again to appear in the case then on trial. We would observe, in this connection, that the order in question was not made at said time. In fact, no order, except the direction to the sheriff to take him to jail, was made. The nature of the contempt was not announced, nor was the clerk instructed to enter any order, although J. C. Muse insisted before the court that he should make some order defining the time of imprisonment, whether it was to be for life or a term of years. But the judge refused to entertain the request. Mr. H. H. Williams, the clerk, says that some 15 minutes thereafter the judge instructed him to inform the sheriff that the order of imprisonment was until 9 o'clock that night. He further states that at the suggestion of the judge, on Monday or Tuesday thereafter, he wrote up an order of commitment to be entered, and handed it to the judge, who stated he would reform it, and give it back to him for entry on the minutes. The order in question, according to the testimony of this witness, was entered on the record on Wednesday, March 4th. The writ of habeas corpus in this case was sued out, and the writ granted between 6 and 7 o'clock of said Saturday evening. To said writ the sheriff made the following return: "I hold the applicant by virtue of a verbal command of Hon. C. F. Clint, criminal district judge of Dallas county, commanding me to take relator to jail, without any further statement to me by the judge, or other authority; and in pursuance of such verbal order I placed the relator in jail, and subsequently, some time thereafter, I received a telephone message at the jail, directing me to hold relator in jail until nine o'clock that night,—Saturday night, Febry. 29th, 1896,—and then release him; and, upon the issuance of writ of habeas corpus herein by this court, I released relator upon said writ, after taking his bond in the sum of five hundred dollars, which is hereto attached. [Signed] Ben E. Cabell, Sheriff Dallas Co., Texas." It will be seen from this that no writ of commitment was ever issued in this cause. This is a substantial relation of the salient facts in the case.

Before proceeding to a discussion of the case, we will quote the articles of our statute bearing upon this subject.

"Art. 154. Every provision relating to the writ of habeas corpus shall be most favorably construed in order to give effect to the remedy and protect the rights of the person seeking relief under it.

"Art. 155. The court of appeals, or either of the judges, the district courts, or any judge thereof, the county courts or any judge thereof, have power to issue the writ of habeas corpus; and it is their duty, upon proper application, to grant the writ under the rules herein prescribed."

"Art. 165. The writ of habeas corpus shall be granted without delay by the judge or court receiving the petition, unless it be manifest by the statements of the petition...